TaxTMI 
TaxTMI 
1952 (1) TMI 10
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....essee was assessed to sales tax under Section 13(2)(b) (though not stated in the assessment order) by the Sales Tax Officer, Darbhanga, by his order dated 3rd September, 1948, (Exhibit A). The assessee then filed on 4th October, 1948, an appeal before the Commis- sioner of the Tirhut Division (Exhibit B) who, by his order dated 5th April, 1949, (Exhibit C) ordered re-examination of deductions permissible under the rules and dismissed the appeal. The assessee then filed on 30th April, 1949, a revision petition before the Board of Revenue (Exhibit D) against the order of the learned Commissioner, Tirhut Division. The Board by its order dated 11th July, 1949, (Exhibit E) allowed the petition in part and ordered to assess the gross turnover at Rs. 3 lakhs. The assessee then filed two petitions (Exhibits F & G) on 5th October, 1949, and 8th October, 1949, before the Board of Revenue, one for reviewing the order already passed on 11th July, 1949, and the other for reference to the High Court on the following seven questions of law: I. Whether the Member, Board of Revenue, having held that the petitioner was entitled to file the return for the quarter ending 30th June, 1948, up to 31st J....
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.... petitioner under Section 13(2)(c) or under any other section of the Bihar Sales Tax Act, 1947. So far as the 1st question is concerned the Board does not think it advisable to remand the case for further investigation from the stage on which the notice had to be issued, as a return has been filed in time, and the available registers have been examined. On the 2nd point it appears to the Board that the dealer was entitled to file his return on any day up to 31st July, 1948, and the Sales Tax Officer could not take any exception and also that the Sales Tax Officer should have issued notice under Section 13(2) but in the circumstances of the case the Sales Tax Officer had no other alternative but to assess him to the best of his judgment. It is also to be noted that an assessment under Section 13(2)(c) need not necessarily be according to the return. R. Prasad and T.R. Baijaj, for the assessee. Government Pleader, for the State. JUDGMENT. RAMASWAMI, J.-This case is stated by the Board of Revenue under Section 25(3) of the Bihar Sales Tax Act, 1947. The petitioner Harmukh Rai Jairam Das was assessed by the Sales Tax Officer of Darbhanga for the quarter ending 30th June, 1948, to sal....
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....the assessee Mr. Rajeswari Prasad addressed the argument that the Sales Tax Officer had no jurisdiction to make assessment under Section 13(2)(b) since notice under Section 13(2) was not admittedly issued. Learned counsel pointed out that Section 13(2)(a) requires that the Commissioner if not satisfied that the return furnished was correct and complete shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a place to be specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. Section 13(2)(b) states that "on the day specified in the notice or as soon afterwards as may be, the Commissioner after hearing such evidence as the dealer may produce and such other evidence as the Commissioner may require on specified points, shall assess the amount of tax due from the dealer". It was maintained on behalf of the assessee that the requirements of Section 13(2)(a) and Section 13(2)(b) were imperative and the Sales Tax Officer had no jurisdiction to assess the tax unless the condition precedent, viz., the issue of the notice under Section 13(2)(a), was satis....
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....the Act. In support of his argument Mr. Rajeswari Prasad referred to Nirmal Kumar Singh Nowlaksha v. Secretary of State(3) in which the question was whether non-compliance with the provisions of sub-sec- tion (2) of Section 23 would invalidate an assessment. It was found in that case that the return under Section 22 was examined in the presence of the assessee's Gomashtas who were fully aware of all the (1) [1947] 15 I.T.R. 302. (3) (1925) A.I.R. 1925 Cal. 890. (2) [1951] 19 I.T.R. 476. matters in the return which were questioned by the Income-tax Officer but no application was made by them to adduce any further evidence, oral or documentary, with regard to the disputed item. It was held by Greaves, J., that under the circumstances the notice under Section 23(2) should be held to have been waived on behalf of the assessee. Mukherji, J., who was the other member of the Bench, was of opinion that the notice had not been waived and since non-compliance by the Income-tax Officer of the provisions of sub-section (2) of Sec- tion 23 had prejudiced the assessee, the assessment made was not valid. The case is therefore for authority on the proposition that in the absence of a notice und....